Robot 6

It’s 1954 all over again

Unlikely hero: Justice Antonin Scalia

Earlier this week, around the time I finished reading David Hajdu’s The Ten-Cent Plague, the U.S. Supreme Court, it seems, was re-enacting it. Well, at least a couple of scenes.

The Ten-Cent Plague tells the story of not one but several campaigns against comics on the grounds that they were violent and bad influences on children. And, to be fair, the crime and horror comics of the time were pretty damn gruesome, repulsive enough that a lot of folks were willing to set aside the First Amendment on the grounds that the Founding Fathers couldn’t possibly have envisioned the Crypt-Keeper, and they certainly wouldn’t want to defend that. Hajdu documents a flurry of legislation banning all sorts of comic books throughout the country, mostly promoted by people who genuinely cared about children (but who also seem to have forgotten that children have brains of their own).

A similar impulse led California legislators to pass a law in 2005 banning the sale of violent video games to anyone under 18, but the law was struck down by a lower court, because apparently you can only protect youngsters from sex, not violence. This led Justice Antonin Scalia to become the unlikely hero of video gamers everywhere, as he argued on Tuesday that while the First Amendment definitely wasn’t designed to protect obscenity, it should apply to everything else, even violence.

Justice Alito countered, noting 21st-century videogames “cannot possibly have been envisioned at the time when the First Amendment was ratified,” so it would be “entirely artificial” to assume games had the same constitutional protection as books.

Deja vu all over again! The article makes for pretty entertaining reading, with a video game attorney making an explicit reference to comic book suppression, justices and lawyers arguing about how much violence is traditional in children’s media, and Justice Sonia Sotomayor wondering if Bugs Bunny is next. Let’s give Justice Elena Kagan, the youngest member of the court, the last word:

At one point, Mr. Morazzini mentioned that the game “Mortal Kombat,” whose first edition appeared in the early 1990s, might be a candidate for restriction under the law.

“Mortal Kombat,” Justice Kagan responded, “is an iconic game which I am sure half of the clerks who work for us spent considerable amounts of time in their adolescence playing.”



Uh…but video games are more like films and less like books…and last time I checked there were restrictions and coding to warn parents and prevent kids from watching age inappropriate material. Heck even music has warning stickers on them…at least the last time I saw a cd back in 1999.

I love that America was founded on violence…and yet…without sex none of us would be here.
Hooray for the destroyers…boo to the pro-creators.


Whether something was or wasn’t envisioned by the Founding Fathers is irrelevant. The founders couldn’t have envisioned the internet, so does the first amendment not apply to it, either? They couldn’t have envisioned modern printing methods, so does the first amendment only apply to books and newspapers printed using 18th century technology? Hell, the founders couldn’t envision the end of slavery or women voting. It’s an empty argument. The first amendment isn’t about the founders approving certain types of speech or publication. It’s about establishing the principle that the government cannot tell the people what they can and can’t say, that the government can’t shut you up. The founders ability to imagine the future was severely limited, but the principles in the Bill of Rights apply to today just as well as yesterday, but whenever we get scared of something, be it violent games or terrorism, we use this stupid excuse to crap on the rights we pretend to hold sacred.

I was reading the court transcripts and found it surreal…I have usually disliked Scalia, but found him the most interesting in his questions “I wonder what James Madison had in mind about video games?; ” to the guffaws of the courtroom. Sure video games were not envisioned by the first amendment, any more than fully automatic weapons were anticipated by the second amendment. Years ago the argument was made before the court that if pornography is indeed a form of “free speech” than what pray-tell is said speech saying? I am waiting for the argument around depraved violence in video games being too much and yet the same government can torture, commit depraved acts, on prisoners of war at Guantanamo.

Shane, movies and video games both have ratings systems. However, if any government ever made an attempt to keep R-rated movies from being purchased without an ID (and not just individual stores), it would probably results in a lawsuit as well.

There’s a big difference between an industry created rating system and a government mandated restriction.


November 4, 2010 at 7:52 pm

The founders couldn’t have envisioned the internet, so does the first amendment not apply to it, either?

Nor automatic fire-arms, nor medically induced abortions – yet these are both protected on those grounds.

Scalia an “unlikely” hero???

Scalia is just a plain “hero” my friend. Always has been, always will be. His intelligence and humor dwarfs anyone else on the bench.

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